Australia: Sexual abuse allegations in family law

Last Updated: 29 May 2015
Article by Simon Creek

Unfortunately allegations of sexual abuse are common in Family Law proceedings. In our experience sexual abuse allegations are often (though not always) made in conjunction with domestic violence allegations. Sometimes the accused parent will admit that the domestic violence occurred and deny the abuse allegations regarding the children.

Competing considerations

The Family Court finds itself in a difficult position where sexual abuse allegations are made. On the one hand, the Court must protect the welfare of the children from terrible injury and, consequently err on the side of protecting children in interim proceedings.

On the other hand, the Court has to protect the interests of the accused parent. The Court is aware of the likely damage to a parent-child relationship as a consequence of false allegations. Such damage to relationships may never be repaired. The Court is aware that not all allegations of sexual abuse are true. False allegations may be made either:

  1. by a parent acting in good faith, as a result of misperception of information about their child; or
  2. by a parent deliberately fabricating allegations in order to gain an advantage in proceedings.

In relation to the first point, it is obviously important to treat seriously allegations from children and things said by children which indicate that abuse may have occurred. If the mother suspects the child is being sexually abused and tells the Court the perceived disclosures that have been made to her she may find that her credibility is put in issue. The accused father may believe that the mother is seeking to discredit him and advance her claim to custody or to restrict his contact.

From the father's perspective, he has a valid argument that parents should be cautious about rushing to conclusions, on the basis of what young children may say. Young children can easily believe and defend as true, things which have never happened but have been suggested to them have occurred. Young children often have difficulty knowing the difference between truth or fiction. Ambiguous events often have an innocent explanation. Once a child gets a false concept embedded in his/her mind, and is supported and encouraged in that false belief, the consequences for everyone are very serious.

In relation to the second point, the Court will be critical of a parent who undermines the relationship of the child with the other parent based on false or embellished allegations. In some cases, the Court has transferred the primary care of the child to the accused parent where it had no option because of concerns that the child would otherwise develop serious behavioural problems.

However remember that the Court has to do what is in the child's best interests. It is not a question of punishing the bad parent and rewarding the good one. It may not be in a child's best interests to change their primary residence where the child is closely bonded to a parent, even if the parent has made false allegations, but is otherwise a good carer. In these instances, the Court may consider making more generous orders for the accused parent to spend time with a child if they find the other parent has made false or exaggerated allegations.

How does the Court determine sexual abuse allegations?

The practical difficulty is that the highly emotional nature of family law proceedings does not assist with the truth finding process. Often one parent may refuse to shift from rigid or extreme views and their own version of the truth, despite the facts.

The most common form of child sexual abuse is "indecent dealing" i.e. touching and groping without penetrative acts. Penetrative acts on children of the anus and vagina can be corroborated or disproved medically. The difficulty comes when penetrative acts are not alleged.

At the interim stage, the Court will err on the side of caution and tend to only allow the accused parent to have supervised contact of the child before the allegations have been investigated and determined at Trial. This creates other practical problems. It can be difficult and expensive for the parents to agree on an appropriate adult to supervise the interim contact arrangements. Often the only logical candidate is a grandparent or family member of the accused parent who is willing to spend the time and effort to supervise. However, such persons may be unsuitable to supervise, because the Court may have concerns about their willingness or ability to protect the child. If so, the only option may be to attend a supervised contact centre.

In dealing with child abuse allegations at Trial, the Court will apply the High Court decision in M & M (1988). The standard to be applied may be summarised as follows:

  1. The Court will avoid making any findings as to whether abuse of the child has occurred or not (because the Family Court is carrying out different functions from a Criminal Court) unless the evidence is extremely compelling. If the Court does find abuse has occurred, the perpetrator will usually be prevented from having any relationship with the child or greatly restricted by way of supervised contact.
  2. Otherwise the Court has to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child in having contact with the accused parent in considering what parenting order is to be made in the best interest of the child. To achieve a proper balance, the test is best expressed saying that the Court will not make parenting orders in favour of an accused parent if it would expose the child to an unacceptable risk of abuse.

Practical suggestions if you are the parent who has been accused of sexual abuse

Based on our experience in this area we have some practical suggestions to offer:

  1. First, try not to overreact. Sending abusive text messages or emails will only make a bad situation much worse. Draw on the support of friends and family to help get you through it.
  2. Second, obtain legal advice at an early stage to chart out a plan of action. A family lawyer may also likely suggest that you obtain advice from a criminal lawyer or barrister if you face the prospect of sexual assault charges being laid against you. It is not a good idea to attend at the police station for an interview without having a lawyer accompany you.
  3. Third, prevention is better that cure. You know your former partner better than anyone else. For example, you will need to take precautions when you have the care of the children if you know that your former partner is prone to jump to conclusions and refuse to be swayed from their opinions or if they are prone to making false accusations. The precautions may include having other people present when you have the children, being careful when bathing with the children and being careful with the sleeping arrangements for the children.
  4. Fourth, be patient and hang in there. The Family Court process takes time and there will be delays and frustrations along the way. You need to be in there for the long haul. Sometimes it is better to accept restricted and supervised interim time with your children, to maintain your relationship with them until the evidence of the allegations is properly brought before the Court and tested at Trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Simon Creek
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